The relevant facts are undisputed. In June and December 1988, defendant
committed acts which resulted in his convictions, in December 1989, on two counts of
sex abuse in the second degree. ORS 163.425. The trial court suspended imposition of
his sentence and assigned defendant to two consecutive four-year terms of probation. In
1989, the legislature enacted the original sex offender registration statute. Or Laws
1989, ch 984, § 2, codified as former ORS 181.518. In 1991, the legislature enacted the
statute making failure to register as a sex offender a crime. Or Laws 1991, ch 389, § 4
codified in 1995 as ORS 181.599. In June 1994, defendant's probation was revoked, and
he was sentenced to one year in prison. Defendant was released from prison in December
1994.

The version of the sex offender registration statute in effect at the time of
defendant's release, former ORS 181.518 (1993), applied to any person who

"is discharged, paroled, or released on any form of supervised or conditional
release from a jail, prison or other correctional facility in this state at which
the person was confined as a result of conviction of a sex crime * * *."

With respect to such individuals, former ORS 181.518 (1993) required that:

"(2) Following discharge, release from active parole or other
supervised or conditional release, the person shall provide, in writing, the
address of the person to the Oregon State Police:

In June 1997, the state charged defendant with failure to register as a sex
offender, ORS 181.599, alleging that he changed his residence "on or about October 13,
1996," and failed to register his new address with the local police within 30 days. ORS
181.599 provides, in part:

"A person who is required to register as a sex offender and who has
knowledge of the registration requirement commits the crime of failure to
register as a sex offender if the person fails, as required by ORS 181.595
[formerly ORS 181.518] * * * to:

On appeal, defendant assigns error to the trial court's denial of his motion to
dismiss. Defendant argues that (1) former ORS 181.518 (1993) does not apply
retroactively; and (2) even if the statute does apply retroactively, such application violates
both state and federal constitutional prohibitions against ex post facto laws. Or Const, Art
I, § 21; US Const, Art I, § 10. We review for errors of law. State v. Gallant, 307 Or 152,
155, 764 P2d 920 (1988).

Here, defendant was released from incarceration in December 1994, almost
five years after the registration statute's effective date. Thus,defendant was subject to the
registration requirement upon his release from prison.

"The first question is whether the legislative purpose in enacting the * * *
[sex offender registration requirement] was punitive. If it was, the * * *
[registration requirement] constitutes punishment. Determining that the
purpose was not punitive does not end the inquiry, however, but simply
leads to the second question, whether the * * * [registration requirement] is
so punitive as to negate the nonpunitive intention."

We proceed to the second aspect of the inquiry: Whether the registration
requirement is so punitive in "nature or effect as to negate the nonpunitive intention."
Gress, 143 Or App at 16. See also Kansas v. Hendricks, 521 US 346, 361, 117 S Ct
2072, 138 L Ed 2d 501 (1997) ("Although we recognize that a 'civil label is not always
dispositive,' we will reject the legislature's manifest intent only where a party challenging
the statute provides 'the clearest proof' that 'the statutory scheme [is] so punitive either in
purpose or effect as to negate the [the State's] intention' to deem it 'civil'") (citations
omitted).

We conclude, nevertheless, that at least some aspects of the Kennedy
analysis are transferable to the ex post facto context. Without purporting to identify an
exhaustive list of factors relevant to every case, we conclude that the following
considerations govern our determination of whether the sex offender registration
requirement at issue here is punitive in nature and effect: (1) Has the requirement been
historically regarded as a punishment? (2) Does the requirement involve an affirmative
disability or restraint? (3) Is the scope and rigor of the registration requirement excessive
in relation to its purported nonpunitive purpose? Applying those considerations, we
conclude that the sex offender registration requirement is not "in its nature or effect so
punitive as to negate the [legislature's] nonpunitive purpose." Gress, 143 Or App at 16.

Defendant next contends that the registration requirement implicates an
affirmative disability or restraint on defendant's liberty, both because it requires defendant
to undertake the affirmative action of registering and because it subjects defendant to
"police scrutiny, control, and monitoring" and limits his "liberty and expectation of
privacy." We disagree.

The demands of complying with the registration requirement--the additional
expenditure of time and energy, and any concomitant limitation on a registrant's freedom
of action--are minimal. Any "burden" associated with compliance is so incremental that it
does not approach the level of punishment. See State v. Burke, 109 Or App 7, 11, 818
P2d 511 (1991) (holding that the fact that a retroactive law may have a deleterious effect
on a individual does not mean that it is ex post facto punishment); see also Hudson, 522
US 93 at 104 (exclusion of petitioners from "further participation in the banking industry"
was not an affirmative disability or restraint because such exclusion was "nothing
approaching the infamous punishment of imprisonment").

The sex offender registration scheme is not punitive in purpose or in effect.
Accordingly, the retroactive application ofthe registration statute to defendant does not
violate the ex post facto prohibitions of the state and federal constitutions.

Defendant was first subject to the sex offender registration requirement under
former ORS 181.518 (1993), upon his release from prison in 1994. We understand
defendant to challenge the application of former ORS 181.518 (1993) to him, and,
accordingly, our analysis refers to that version of the statute.

2. The registration statute at issue here is qualitatively different from the
predatory sex offender designation and notification scheme addressed in Noble v. Board
of Parole, 327 Or 485, 496-98, 964 P2d 990 (1998) (because designation decision
"implicates a due process interest in liberty," inmate is entitled to notice and hearing
before being designated as predatory sex offender).

4. Having concluded that former ORS 181.518 applied retroactively to sex
offenders released from prison after the statute's effective date in 1989, we were
nevertheless unable to determine whether it applied to the defendants in Driver/Collins
because the record did not show when the defendants were first released from prison--i.e.,
before or after the statute's effective date. We concluded that "until that issue is resolved
on remand, [the defendants'] ex post facto claims are premature" and remanded the case
for further proceedings. Driver/Collins, 143 Or App at 23.

6. See Gress, 143 Or App at 15 n 11 ("We are determining whether the
legislature's purpose was punitive in order to decide the constitutional effect of that
purpose, not the meaning of the statute. The analysis in PGE v. Bureau of Labor and
Industries, 317 Or 606, 859 P2d 1143 (1993), is therefore irrelevant to our
determination.")

7. The remarks of Representative Bell, who carried the bill, exemplify
expressions of legislative intent to prospectively assist law enforcement agencies:

"Given our limited understanding of this offender group, it becomes
increasingly important for us to strengthen our capacity to manage and
supervise this population in the interest of public safety. The enactment of
this bill will provide law enforcement agencies with an easily accessible
database as an aid in solving those stranger-to-stranger crimes when there is
no suspect.

"It is hoped that registration will also act as a deterrent to those convicted
sex offenders living in our communities. Perhaps if they know local law
enforcement officials have their name and address with a description of
their past offense, it may stop them from hurting innocent people again."

8. In fact, the Chair of the House Judiciary Subcommittee on Family Justice,
Representative Kelly Clark, noted that:

"[I]t might be important under the Oregon Constitution that we make clear
here that the legislative intent is to prevent future sex offenses against
children and that the registry is not based on some sort of notion of
retribution * * *." Tape recording, House Judiciary Subcommittee on
Family Justice, HB 2407, February 18, 1991, Tape 36, Side I (emphasis
added).

Representative Clark also stated:

"We want the information in the registry for purposes of law enforcement
and to protect against future crimes. * * * [W]e're not intending by this to
use the * * * approach of posting a sign * * * that follows this person for
the rest of their life." Tape recording, House Judiciary Subcommittee on
Family Justice, HB 2407, February 18, 1991, Tape 35, Side II.

10. Moreover, in State v. Phillips, 138 Or App 468, 909 P2d 882, rev den 323
Or 114 (1996), we held that, under Halper, a civil penalty constitutes punishment for
purposes of the Double Jeopardy clause only if deterrence is the exclusive goal of the
statute. See id. at 473 (statute requiring one-year suspension of driving privileges of DUII
defendant was not punitive because purpose was to protect the public by removing
dangerous drivers from the road, even though sanction might also serve to deter future
DUIIs).

11. "Whether the sanction involves an affirmative
disability or restraint, whether it has historically been
regarded as a punishment, whether it comes into play only on
a finding of scienter, whether its operation will promote the
traditional aims of punishment--retribution and deterrence,
whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned * *
*." Kennedy, 372 US at 168-69 (footnotes omitted).

12. Defendant points only to Weems v. United States, 217 US 349, 380-82, 30 S
Ct 544, 54 L Ed 2d 793 (1910), in which the Court held that a sentence of permanent
government surveillance was cruel and unusual punishment. We are not persuaded by
defendant's attempt to draw a parallel between lifetime government surveillance and the
address registration requirement. The defendant in Weems was not permitted to relocate
without permission from a government authority and was subject to constant government
surveillance, whereas defendant here satisfies the requirements of former ORS 181.518
by reporting his address to a police agency.

13. Defendant also argues that the registration requirement imposes an
affirmative disability or restraint because that information, once entered into the LEDS
database, is available to certain departments and agencies and, thus, "could affect
defendant's potential employability * * *, impair his freedom to travel (that is, to live
where he chooses) and perhaps even endanger his safety." Defendant's concerns in that
regard are unfounded. In contrast to the predatory sex offender notification scheme at
issue in Noble, 327 Or at 491-92, the registration statutes permit disclosure only to
specifically designated entities, not to the public. See ORS 181.537(1) (authorizing the
Department of Human Resources and the Employment Department to "request" criminal
offender information); ORS 181.539(1) (authorizing the Teacher Standards and Practices
Commission and Department of Education to request and receive information). The
record is devoid of any evidence that any information regarding defendant has been
disclosed.

14. We note that ORS 181.600 provides that, 10 years after release, sex
offenders can petition for relief from the registration requirement and are entitled to such
relief upon a showing of clear and convincing evidence of rehabilitation.